Pot ‘Legalization 2.0’: Social Equity Becomes a Key Question

Questions about conviction-clearing and other issues contributed to delaying legislative votes on legalizing recreational pot that had been expected earlier this spring in New York and New Jersey

By Jennifer Peltz •Published May 19, 2019•Updated on May 19, 2019 at 4:32 pm

Christopher Furlong/Getty Images

Advocates for legalizing marijuana have long argued it would strike a blow for social justice after a decades-long drug war that disproportionately targeted minority and poor communities.

But social equity has been both a sticking point and selling point this year in New York and New Jersey, among other states weighing whether to join the 10 that allow recreational use of pot.

Complicating the law-making process, sometimes even among supporters, are questions about how best to erase marijuana convictions and ensure that people who were arrested for pot benefit from legal marijuana markets.

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Advocates say legalization elsewhere hasn't done enough to achieve those goals. Critics maintain legal pot is even accelerating inequality as the drug becomes big business for companies generally run by white men.

"We're at the stage of marijuana reform 2.0," said Douglas Berman, an Ohio State University law professor who follows marijuana policy. The conversation, he said, has shifted from just being about legalization to, "which track should we make sure we head down?"

Questions about conviction-clearing and other issues contributed to delaying legislative votes on legalizing recreational pot that had been expected earlier this spring in New York and New Jersey. The states' Democratic governors and legislative leaders support legalization but confronted differences even within their own party.

The New Jersey measure fizzled this week, when the state Senate president said he'll aim for a 2020 referendum while pursuing separate legislation to expand medical marijuana and expunge low-level pot convictions.

Meanwhile, some New York lawmakers said they'll soon unveil an updated proposal to legalize pot and foster racial and economic equity. Activists remain hopeful the state can set an example.

"Social justice is what's going to propel us, not what's going to hold us back," said Kassandra Frederique, the New York director for the pro-legalization Drug Policy Alliance.

Federal data shows similar percentages of white and black people use marijuana. But the arrest rate for blacks is higher, according to reports by the American Civil Liberties Union and others.

Legalization of recreational pot in 10 states and the District of Columbia, and medical pot in two-thirds of the states, hasn't eliminated the gaps. In Colorado, for instance, a state report found arrests were fewer but the rate remained higher among blacks five years after a 2012 vote for legalization.

Meanwhile, the emerging marijuana industry is very white, according to the limited data available.

"It's obviously a problem," said Morgan Fox of the National Cannabis Industry Association, which has helped craft suggestions for social equity legislation.

Another industry group, the Cannabis Trade Federation, this week announced plans to craft a diversity and equity policy in conjunction with national NAACP officials and other civil-rights advocates.

Some would-be minority entrepreneurs have been caught in a cannabis Catch-22, unable to work in a legal pot business because of a past conviction. Others struggle to raise start-up money in an expensive industry that banks are leery about entering because of the federal government's prohibition on pot.

"We're not going to have much time to make a space in the market for ourselves," said Jason Ortiz, vice president of the Minority Cannabis Business Association.

Marijuana got Ortiz arrested as a teenager, but now he hopes to start a business if recreational pot becomes legal in Connecticut, where he lives.

Some states and cities have started post-legalization initiatives to expunge criminal records and open doors in the cannabis business for people with pot convictions. California, for instance, passed a sweeping expungement law last year affecting hundreds of thousands of drug offenders.

New Jersey Sen. Cory Booker has proposed a national legalization measure that includes expungements and a community "reinvestment" fund, and several of his fellow Democratic senators and 2020 presidential primary contenders have signed on .

Some veterans of early state legalization campaigns have reckoned with their limitations.

"We were overly cautious at the time, looking back," said Art Way, the Drug Policy Alliance's director in Colorado. "But it didn't feel that way" when legalizing marijuana and ending many arrests were unprecedented goals in themselves.

He's been fighting to make Colorado's cannabis industry more accessible to people with drug convictions and entrepreneurs of modest means.

Opponents, too, are looking at how legalization has played out. They say it shows authorizing pot is no way to help minorities.

"The social justice issue is a big front" for states and big business to make money off marijuana, said New Jersey Legislative Black Caucus Chairman Ronald Rice, a Democratic senator from Newark and former police officer. He supports ending criminal penalties for marijuana but not legalizing recreational use.

"I know what social justice looks like," Rice says. "I also know when people are being used."

He doesn't foresee pot shops enhancing neighborhoods where drugs have been a wellspring of problems. And he's skeptical that, even with special incentives, residents would reap the profits in an industry already infused with big money.

New York Assemblywoman Crystal Peoples-Stokes agrees legalizing marijuana isn't a panacea for minority communities. But the Assembly's first African-American majority leader is championing a recreational-pot proposal that's currently being revised.

"It will not end racism. But it is a crucial step in the right direction," Peoples-Stokes, a Buffalo Democrat, recently wrote in Newsweek.

As an aspiring marijuana businessman in New York, Andrew Farrior is following the legalization debate and its talk of social equity.

Farrior, who is black, is intrigued by the possibility of incentives for entrepreneurs like him but not confident such plans would translate into action. Meanwhile, he and co-founder Ethan Jackson are plowing ahead with plans to launch Greenbox.NYC as a subscription and delivery business for hemp and other legal cannabis-related products.